Guideline Sentencing

Judicial discretion enables judges to make sentencing decisions within specific statutory limits. As with prosecutorial discretion, judicial discretion is built into the system as a means of enabling flexibility, accounting for special circumstances and rapidly shifting norms, and also increasing efficiency. Although judicial discretion has been widely and voraciously accused of fostering racial disparities, it has also been presented as the means to reduce sentencing disparities and promote justice (Bunin, 2009). Federal sentencing guidelines provide the structure and limitations of judicial discretion.

The Sentencing Reform Act of 1984 followed on the heels of similar legislation, and heavily restricted judicial discretion in federal sentencing. The pendulum swung in 2005, when the Supreme Court decided United States v. Booker, 543 U.S. 220. In United Stats v. Booker, the court ruled that federal sentencing guidelines are to be guidelines only and not mandatory. The post-Booker environment enables judges to account for situational and personal variables and to determine unique sentencing in each case.

Seriousness and nature of the offence, history and characteristics of the defendant, the kinds of sentencing available, and the more existential function of sentencing in the particular case are all potential considerations for the judge (Bogan, 2012). With regards to the existential purpose of sentencing, there are symbolic purposes, purposes related to protection of the public, and purposes related to the defendant such as potential for rehabilitation vs. specific needs like mental health care.

The judge remains confined to statutory limits related to each offence, in spite of the additional discretion allowed by United States v. Booker. Guideline sentencing pertains to white collar crimes including fraud as well as for drug and violent crimes. There have been dozens of subsequent Supreme Court cases since Booker that address guideline sentencing. Like the Booker decision, many subsequent decisions rested on interpretations of Sixth Amendment rights to jury trial and the implied role of the judge therein.

Moreover, the terms "reasonableness" and "unreasonableness" appear frequently in the decisions related to guideline sentencing. For example, in Rita v. United States, 551 U.S. 338 (2007), Justice Breyer wrote the majority 8-1 opinion holding that "courts of appeals may apply presumption of reasonableness when reviewing a sentence imposed within the sentencing guideline range," (Office of General Counsel United States Sentencing Commission, 2010). The Rita decision affirmed the Booker decision in that judges are offered significant leeway within guideline sentences, without rendering guidelines irrelevant.

Guidelines are exactly that, guidelines, within which judges can take into account extenuating circumstances and the efficacy of sentencing in any particular case. The recent trend toward increased judicial discretion has been criticized for its potential to increase leniency, its potential to increase sentencing severity in other cases, and also on the grounds of decreasing consistency within states. To address problems with consistency, the Supreme Court heard Gall v. United States 128 S. Ct. 586 (2007), and affirmed the importance of federal sentencing guidelines.

The decision did not undo prior cases in the post-Booker guideline sentencing landscape. Rather, the decision asked that judges take into account the guidelines as a matter of priority and not veer overly much from the federal sentencing guidelines. It was ruled in this case, in a 7-2 decision, that the courts had abused their powers of discretion and that the guidelines must be adhered to with a greater degree of consistency than what was exhibited in the original Gall case (Office of General Counsel United States Sentencing Commission, 2010).

This is not to say that the Supreme Court restricted all judicial discretion in guideline sentencing, because it did allow for "reasonable" exceptions to the guidelines. It was determined that "reasonableness" can be determined in part by the level of deviation from the guidelines; the court also disavowed the need for "extraordinary circumstances" being the requisite for deviation from guidelines," (Office of General Counsel United States Sentencing Commission, 2010). The Kimborough v. United States 128 S. Ct.

558 case was heard the same year as Gall and reached a similar conclusion regarding the ability of judges to use guidelines without abusing their discretionary powers. However, Albonetti (2011) points out that statutory minimums remain in place for drug and gun offences in the lower courts, and that these statutory minimums have "always trumped the federal sentencing guidelines," (p. 1154). It remains necessary to clarify the differences between judicial discretion at the level of the lower vs. The higher courts to increase overall sentencing consistency and fairness.

Therefore, the trend toward increasing judicial discretion has occurred with reasonable argument and shifts toward increasing clarity and consistency. The trend is rooted in fears that overly restrictive.